Canada's Digitization Strategy Needs Dose of Fair Dealing

Last year, the Writers' Union of Canada and Union des Écrivaines et des Écrivains Quebecois announced that they were joining a lawsuit against HathiTrust, a consortium of U.S. universities that work with Google on the digitization of millions of books. The lawsuit, which was led by the Authors' Guild in the U.S., challenged the legality of scanning millions of books and placing the books in the HathiTrust Digital Library (HDL).

Yesterday, a U.S. court ruled resoundingly for the universities, concluding that the practices fall squarely within U.S. fair use (good analysis from Grimmelman, Madison, Smith and Krews). The case is an important win for fair use and it points to a potential model for Canadian universities that have lagged behind in ensuring digital access to materials.

The HDL, a joint project of the University of California, University of Wisconsin, Indiana University, Cornell University and University of Michigan, used digital copies originally scanned by Google to allow for three purposes: (1) full text searches; (2) preservation; and (3) access for people with print disabilities. The universities implemented access to the database of scanned books in different ways. The full text search functionality enabled users to search through millions of books for particular terms. If the book was not in the public domain or there was no authorization from the copyright owner, searches only indicated the page number where the search term was found with no actual text copied. Students with print disabilities were able to access the full-text through a secure system that was not available to the general public or student body.

The court conducted a full analysis of the four U.S. fair use factors (which are similar to Canada's six fair dealing factors) and concluded:

The totality of the fair-use factors suggest that copyright law's "goal of promoting the Progress of Science...would be better served by allowing the use than by preventing it." Bill Graham, 448 F.3d at 608 (quotation marks omitted). The enhanced search capabilities that reveal no in-copyright material, the protection of Defendants' fragile books, and, perhaps most importantly, the unprecedented ability of print-disabled individuals to have an equal opportunity to compete with their sighted peers in the ways imagined by the ADA protect the copies made by Defendants as fair use to the extent that Plaintiffs have established a prima facie case of infringement.

Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use such that there is no genuine issue of material fact. I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants' MDP and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA.

The strong endorsement of fair use in the context of digitization in the U.S. suggests that a similar initiative could be pursued in Canada using fair dealing. I have written that the recent Supreme Court of Canada copyright decisions bring Canadian fair dealing very close to U.S. fair use. A Canadian fair dealing analysis of a similar digitization initiative would easily pass the first stage purposes analysis given the obvious research purpose. The Canadian six factor test (purpose, character, amount, alternatives, nature, and effect) would depend on the specifics of the program -- what is copied, what is made accessible, who has access, terms of access, etc. -- but a court would likely be reluctant to rule against a well-crafted, reasonable initiative focused primarily on increasing access to books already purchased by Canadian libraries (full text search), preservation of those books, and enhancing access for the visually impaired.

This is particularly true given the Supreme Court's emphasis on technological neutrality. Canadian universities have already come together under the Canadian Research Knowledge Network to purchase universal site licenses to millions of articles and electronic books. The next step is to begin the process of digitizing their print collections and providing greater access by relying on fair dealing.